District Superintendents
Superintendents of Public Schools
Charter Schools Administrators
Title I Coordinators

From:

Ira Schwartz

Date:

November 25, 2009

Subject:

American Recovery and Reinvestment Act (ARRA) and Title
I, Part A Waivers

In July 2009, Education Secretary Arne Duncan issued Non-Regulatory
Guidance on Title I, Part A Waivers intended to provide comprehensive
information on how states may request waivers of specific statutory
and regulatory provisions of Title I, Part A of the Elementary
and Secondary Education Act of 1965 (ESEA) of 1965.

After a careful review of the Non-Regulatory Guidance on Title
I, Part A Waivers and discussion with our statewide Committee of
Practitioners, the Department has decided to request the following
waivers. Presented below is an overview of each of the waivers
taken directly from the Guidance. The plan is to submit to the
United States Education Department (USED) a blanket waiver request
on behalf of all New York State LEAs:

Waive the Following Requirements of Title I, Part A Statutory
and Regulatory Requirements Related to SES and Public School Choice:

14-day notice of public school choice.
This provision requires an LEA to provide parents of eligible
students with notice of their public school choice options at
least 14 days before the start of the school year (34 C.F.R.
§ 200.37(b)(4)(iv)). Please note that the 14 day notice waiver
request will apply only to the 2009-10 school year.

Approval
of identified LEAs and schools as SES providers.
This provision prohibits an SEA from approving as a provider
of SES a school identified for improvement, corrective action,
or restructuring or an LEA identified for improvement or corrective
action (34 C.F.R. § 200.47(b)(1)(iv)(A), (B)).

Waive the Following Requirements Related to Title I, Part A ARRA
Funds:

Each waiver request pertains only to the ARRA portion of the
2009-10 Title I allocations:

An LEA’s obligation to spend an amount equal to at least
20 percent of its FY 2009 Title I, Part A, Subpart 2 allocation
on transportation for public school choice and on SES (20 percent
obligation) (ESEA section 1116(b)(10); 34 C.F.R. § 200.48).

The responsibility of a school in improvement to spend 10
percent of its Title I, Part A funds on professional development
(ESEA section 1116(b)(3)(A)(iii); 34 C.F.R. § 200.41(c)(5)).

The responsibility of an LEA in improvement to spend 10 percent
of its FY 2009 Title I, Part A, Subpart 2 allocation on professional
development (ESEA section 1116(c)(7)(A)(iii); 34 C.F.R. § 200.52(a)(3)(iii)).

The responsibility of an LEA to calculate the per-pupil amount
for SES based on its FY 2009 Title I, Part A, Subpart 2 allocation
(per-pupil amount for SES) (ESEA section 1116(e)(6); 34 C.F.R.
§ 200.48(c)).

The prohibition on an SEA’s ability to grant to its LEAs
waivers of the carryover limitation more than once every three
years (ESEA section 1127(b)).

This last waiver request is the result of the timing of the release
of ARRA funds. Most LEAs will exceed the 15 percent carryover
limitation even if they were to exhaust their entire regular Title
I allocation plus 2008-09 carryover by the end of the 2009-10 project
year.

In order to assist LEAs to plan for the use of these ARRA funds
during the 27 month life of these funds, the Department will request
the USED to waive the provision for the use of 2009-10 carryover
by the end of September 30, 2011, including the need for LEAs to
request this waiver in writing.

The “set-aside” requirements referenced in the Guidance are the
twenty percent obligation for public school choice-related transportation
and SES and the ten percent professional development obligations
listed above.

Non Waivable Items:

Note that there are both statutory and regulatory requirements
that the Secretary may not waive under section 9401. They are as
follow:

Allocation or distribution of funds to States, LEAs, or other
recipients of ESEA funds;

Comparability of services;

Use of Federal funds to supplement, not supplant, non-Federal
funds;

Equitable participation of private school students and teachers;

Parental participation and involvement;

Applicable civil rights requirements;

Requirements for a charter school under subpart 1 of Part B
of Title V of the ESEA;

The prohibitions regarding: State aid in section 9522 of the
ESEA, use of funds for religious worship or instruction in section
9505 of the ESEA, and activities in section 9526 of the ESEA;
and

Selection of school attendance areas or schools under section
1113(a) and (b) of the ESEA, except that the Secretary may grant
a waiver to allow a school attendance area or school to participate
in Title I, Part A activities if the percentage of children from
low-income families in the school attendance area or who attend
the school is not more than 10 percentage points below the lowest
percentage of those children for any school attendance area or
school of the LEA that meets the requirements of section 1113(a)
and (b).

Accordingly, SED is not seeking waviers for any of the above.

Notice and Comments Requirements:

As a condition of applying for these waivers, an entity must demonstrate
that it has complied with the notice-and-comment requirements for
a waiver request. In the case of a waiver request submitted by
an SEA, prior to submitting its request, the SEA must provide all
interested LEAs in the State with notice and a reasonable opportunity
to comment on the request (ESEA section 9401(b)(3)(A)(i)). The
SEA must submit all comments it receives from those LEAs to the
Secretary along with its waiver request (ESEA section 9401(b)(3)(A)(ii)).
The Secretary will consider these comments when determining whether
to grant the waiver request. The SEA must also provide notice
and information regarding the waiver request to the public in the
manner in which the SEA customarily provides such notice and information
to the public (ESEA section 9401(b)(3)(A)(iii)), such as through
a public website.

Attached to this memo is a copy of the Non-Regulatory Guidance
on Title I, Part A Waivers as well as a copy of the April 1, 2009
letter to Chief State School Officers from Secretary Duncan regarding
Title I regulations that may be of assistance to you in your review
of the waiver options. Copies of the April 1, 2009 letter and the
Non-Regulatory Guidance on Title I, Part A Waivers are also available
on-line at the following web addresses:

As required by Section 9401 of the ESEA, the purpose of this memo
is to provide all LEAs with notice of and opportunity to comment
on the proposed waivers to be requested. Comments may be submitted
via email, fax, or mail (postmarked) no later than December 11,
2009. Email submissions should be addressed to the following email: T1ARRA@MAIL.NYSED.GOV.
All other submissions should be addressed to the attention of:

Roberto Reyes, Director
State Title I School and Community Services
Education Building Annex, Room 365
Albany, NY 12234
Fax: (518) 486-1762
Email: T1ARRA@MAIL.NYSED.GOV